Same sex couple to care for child after surrogacy breakdown

My previous blogs have focused on the need for reform of the laws surrounding Surrogacy. Those who enter such a venture are left in a vulnerable position as has been highlighted by the recent case of H v S 2015.

This week we have heard the news that a father and his same sex partner secured an order for their one year old child to live with them and have contact with the mother following the breakdown of their surrogacy arrangement.

The biological father (referred to as “H”) and his long term same sex partner (“B”) had entered a surrogacy arrangement with the father’s friend (the Mother “M”) that she would carry a child for them. Following the child’s birth M refused to hand the baby over and registered the birth without naming F. She would not allow any contact.

Given that M would not consent to a parental order, H and B proceeded with an application for an order for the baby to live with them and for parental responsibility. H and B contended that it had been agreed with M that she would have some role in the child’s life but they would be her full time parents. M’s position was that H was in fact a sperm donor and he would play the role of separated father. She was entirely against B playing any role.

M showed great hostility toward H and B within the proceedings and even proceed to baptise the child despite an order being in place to prevent her from doing so (due to conflicting religious beliefs).

It was the view of the guardian appointed that M’s negative view of H and B would cause the child emotional harm and confusion about her identity. She recommended that the child should live with H and B and that contact with the mother should be reduced to once a month, the mother being found unable to prioritise the child’s interests over her own.

The Judge fully acknowledged this was a difficult decision and moving the child would cause some distress. However looking to the long term it was decided that H was the parent who was best able to meet the child’s needs both now and in the future. He had shown the ability to allow her to grow into a happy, balanced and healthy adult and he could help her to reach her greatest potential. An order was made that she reside with H and that the time spent with M in first instance was to be supervised. Further, due to M’s conduct in these proceedings an order was made preventing the mother from removing the child from the jurisdiction until her 16th birthday.

This Judgement once again reiterates the importance of seeking legal advice if you are considering a surrogacy arrangement both at home and abroad.

For further information about the surrogacy process, please click here

Fisher Jones Greenwood is the trading name of Fisher Jones Greenwood LLP, a Limited Liability Partnership authorised and regulated by the Solicitors Regulation Authority and registered in England ( Number: OC305854 ). A list of members is available for inspection at the registered office at Charter Court, Newcomen Way, Colchester Business Park, Colchester, Essex CO4 9YA